Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation, Defendant/Appellee

This private suit under the Age Discrimination in Employment Act of 1967 (ADEA or the Act), 29 U.S.C. § 621 et seq. (1976), was dismissed 1 for want of prior filing with the Secretary of Labor of the notice of intent to sue formerly required by section 7(d) of the Act, 29 U.S.C. § 626 (d). 2 The question before us is whether under the circumstances of the case the notice of intent to sue requirement should be either deemed satisfied or waived. We conclude that it should not, and affirm the judgment of the district court.

I.

The case for permitting the plaintiff/appellant (Hageman) to maintain the action is based on the following facts. He was fired from his job on September 3,1975. Only 26 days later, on September 29,1975, he lodged a complaint with the Department of Labor (DOL) by filling out an “Employment Information Form,” checking the box on that form that indicated that he believed he had been discriminated against because of his age, and attaching a three-page typewritten explanation of the events leading up to and surrounding his discharge. On October 28, 1975, he was interviewed by telephone by a DOL investigator; he then gave further information about the basis of his…

dissenting.

I respectfully dissent.

Although no circuit court to date has so held, several district courts have found complaints similar to that made by Mr. Hageman to the Department of Labor (D.O.L.) sufficient to satisfy the “intent to sue” notice requirement. For instance, in Langman v. Western Electric Co., 488 F.Supp. 680 (S.D.N.Y.1980), the district court for the Southern District of New York held:

Accord Woodford v. Kinney Shoe Corp., 269 F.Supp. 911 (N.D.Ga.1973); Burgett v. Cud-ahy Co., 361 F.Supp. 617 (D.Kan.1973).

Other circuits have disagreed with such an approach and have adopted a more formalistic interpretation of the ADEA “intent to sue” notice requirement. However, in an analogous area of Title VII law, this court construed a filing requirement in a more pragmatic manner. See Saulsbury v. Wismer & Becker, Inc., No. 77-2855 (9th Cir. 1980). In Title VII, as in the ADEA, if there is a state agency, a complainant has a longer period in which to file his complaint. In Title VII, the longer period is triggered if the complainant “initially institute^] proceedings” with the state agency. 42 U.S.C. § 2000e-5(e). In *1387 Saulsbury, the complainant was in contact with…

623 F.2d 1381 23 Fair Empl.Prac.Cas. 1345 , 23 Empl. Prac. Dec. P 31,140 Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation, Defendant/Appellee. No. 78-1914. United States Court of Appeals, Ninth Circuit. Submitted Feb. 6, 1980. Decided July 28, 1980. 1 Walter Cochran-Bond, Los Angeles, Cal., for plaintiff/appellant. 2 Stephen P. Pepe, O'Melveny & Myers, Los Angeles, Cal., for defendant/appellee. 3 Appeal from the United States District Court for the Central District of California. 4 Before WALLACE and TANG, Circuit Judges, and HANSON, * Senior District Judge. 5 HANSON, Senior District Judge. 6 This private suit under the Age Discrimination in Employment Act of 1967 (ADEA or the Act), 29 U.S.C. § 621 et seq. (1976), was dismissed 1 for want of prior filing with the Secretary of Labor of the notice of intent to sue formerly required by section 7(d) of the Act, 29 U.S.C. § 626 (d). 2 The question before us is whether under the circumstances of the case the notice of intent to sue requirement should be either deemed satisfied or waived. We conclude that it should not, and affirm the judgment of the district court. I. 7 The…